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CC_Minutes_2003_0728
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Roseville City Council
Document Type
Council Minutes
Meeting Date
7/28/2003
Meeting Type
Regular
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<br />July 27, 2003 <br />Page 6 <br /> <br />the Council. Under Minn. Stat. ~ 317.A.521, subd. 6(a)(5), incorporated into Code ~ 105, a <br />person seeking reimbursement could merely delay making the request and thereby go directly <br />to court versus the council. That would take the discretionary decision making ability away <br />from the governing body. It can hardly be said that such an ordinance provision is in <br />furtherance or aid of the criminal reimbursement statute. It could even be reasonably argued <br />that Chapter 105 seeks to undercut and evisorate the provisions of ~ 465.76. This would <br />appear to pose an irreconcilable conflict, and may in fact be invalid due to that. 5 <br /> <br />In light of this potential conflict, it is our opinion that procedurally and substantively the <br />Council should follow the procedure set forth in Minn. Stat. ~ 465.76 at any point where that <br />conflicts with the procedure set forth in Minn. Stat. ~ 317 A.521. <br /> <br />c. Procedure for Seeking Reimbursement <br /> <br />Minn. Stat. ~ 465.76 sets forth a number of factors that must be present for there to be <br />reimbursement. First, reimbursement must be requested by the officer or the employee. Id. <br />Second, there must be consultation with legal counsel. Id. Third, the reimbursement is only for <br />reasonable attorney's fees and costs. Fourth, the reimbursement must be due to charges of a <br />criminal nature that arose out of the "reasonable and lawful performance of duties for the <br />City." Fifth, the decision on reimbursement is to be made only by disinterested members of <br />the governing body. Sixth, even if all factors of the statute are met, a municipality is not <br />required to make reimbursement and can choose to grant or refuse such a request. Seventh, the <br />statutory section only uses the word "reimbursement" and does not use the word indemnify. 6 <br />The fact that Minn. Stat. ~ 465.76 only uses the word reimbursement and not such words as <br />defend or indemnify implies that the payment has to be made to the officer or employee, and <br />not the attorney, reimbursing him for expenses that he has actually paid. For the same reason, <br />it also appears that payment is not to be made until after the matter has been concluded. <br /> <br />Finally, it bears noting that the phrase "reasonable and lawful performance of duties" <br />does not necessarily mean that such reimbursement can occur only when the person seeking <br />reimbursement was acquitted, or at least not convicted, of the criminal charges. In Kroschel v. <br />City of Afton, 512 N.W.2d 351 (Minn. App. 1994), the Court of Appeals construed the <br />criminal defense reimbursement statute to include, within its reach, defense of allegations of <br />violation of the Open Meeting Law. In that case, the Court of Appeals specifically disagreed <br /> <br />5 Discretionary decisions of municipalities are protected and given limited court review. For instance, while Minn. Stat. <br />Ch. 586 allows a person to bring a writ of mandamus to court to compel the performance of an act by a municipality, it does <br />not lie to control discretion. Mandamus does not lie to control discretion or to review the exercise of discretion, even <br />though it may have been erroneously exercised. See Zion Evangelical Lutheran Church v. City of Detroit Lakes, 21 <br />N.W.2d 203 (1946); Rose v. Town of Greenwood, 20 N.W.2d 345 (1945). Discretion in this sense means the power or <br />right of an official to act according to what, in that official's mind, appears best and appropriate under the circumstances. <br />6 By way of contrast, Minn. Stat. S 466.07 requires all municipalities to defend and indemnify officers and employees in <br />actions seeking damages against the officer or employee, provided that the officer or employee was acting in the <br />performance of the duties of the position and was not guilty of malfeasance in office, willful neglect of duty, or bad faith. <br />
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